Against Being Against the Revolving Door

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I have argued, in an article in the Illinois Law Review, and in an op-ed for the New York Times/DealBook, that the perils of the revolving door, whereby lawyers move in and out of government service whilst many wring their hands about it, are overstated. In this post, I want to defend that argument mostly with reference to the employment outcomes of a set of elite prosecutors, most of whom went through the revolving door, but who have not exhibited the signs of corruption we might expect.

I’m not surprised by the result. Most government officials have plenty of reasons to do a good job even if they do not believe they will never leave their posts. Indeed, sometimes a successful stint in the public sector enhances private sector earning potential, to say nothing of more immediate civil service prospects. The revolving door also fosters citizen participation in government, which is supposedly something that the United States particularly values.

And elite lawyers, the sort particularly likely to go through the revolving door, do not look like they are kowtowing to their future employers while working for the government. I offered some evidence of this in the paper based on my study of the careers of a tranche of prosecutors in the much heralded United States Attorney’s Office (USAO) in the Southern District of New York (SDNY).

I looked at what they did while at the office, at roughly the turn of the century, and what they were doing now. What this data shows is that prosecutorial performance, measured by cases brought, prison sentences imposed, or even litigation that made the newspaper, was not correlated with the corruption posited by the revolving door—timid prosecutors did not appear to be rewarded for their laxity on regulated industry. It also showed that the best predictors of the choice to go through the revolving door were demographic ones: maleness, in the broadest possible analysis of the cohort, and whiteness, for the portion of the cohort where race could be determined to a certainty.

But these prosecutors did, in fact, leave. The story of a job in the SDNY is largely a story of a revolving door into private practice—not to business, and not to academia, but to law firms, with a minority remaining in the government, in some cases at the USAO but in others ascending to attractive new public sector opportunities. The job appears to be a good one for resume builders whose tastes lean towards either the public or the private sector—as long as they want to be lawyers.

Of the 152 prosecutors who were members of the criminal division of the U.S. Attorney’s Office (USAO) in the SDNY in 2001, 73 moved into law firms. Ninety-six of the prosecutors had moved to the private sector by 2010, seventy-six percent to a firm. Only fifty-six of the prosecutors of 2001 remained in the government, some as judges, and one as the head of enforcement at the SEC. One became the US Attorney for the SDNY itself.

These biographies, in short, suggest ascending careers, rather than the corruption of our best and brightest.

And, the prosecutors were unquestionably bright, if rather undiverse. The SDNY prosecutors I studied were roughly two-thirds male, and overwhelmingly white. As for eliteness, the five largest providers of U.S. attorneys by far were Columbia Law School, Harvard Law School, NYU Law School, Yale Law School, and Fordham Law School, Fordham being the smallest of the providing institutions, with 9 of the approximately 150 attorneys receiving a law degree from that law school. Harvard graduates comprised 28 of the AUSAs and Columbia graduates 30. NYU had 20. And five of the AUSAs had clerked on the Supreme Court; the AUSAs from the feeder schools were more likely to have clerked for federal judges than their classmates.

It is a glittering set of lawyers. The fact that a majority of them ended up in private practice should not obscure the fact that we probably benefited from their service in government – even if they did, through lucrative or enticing future careers, as well.